Judge Rejects First Bid to Block UK Parliament Suspension

Anti-Brexit supporters gather outside 10 Downing Street in London on Wednesday after Boris Johnson announced his decision to prorogue Parliament. (AP Photo/Matt Dunham)

(CN) – Legal fights to stop British Prime Minister Boris Johnson from suspending the House of Commons on the eve of the United Kingdom’s departure date from the European Union will play out next week at courts in Edinburgh, London and Belfast.

On Friday, former Conservative Prime Minister John Major joined a legal challenge against Johnson in London. Meanwhile, lawyers in the Scottish challenge are seeking to get Johnson to submit an affidavit about his decision to suspend Parliament.

The legal challenges suffered an initial setback on Friday after Scottish judge Raymond Doherty of the Court of Session in Edinburgh rejected a request to issue an emergency injunction to stop the suspension of Parliament.

Instead, Doherty decided to push up the date of a full hearing to Tuesday because the matter was so urgent. He said holding a full hearing on Tuesday will allow more time for appeals before Parliament is suspended, which could happen as early as Sept. 9.

“There’s an urgency to this,” the judge said. “Any delay of any sort is potentially fundamentally prejudicial, not simply to the interests of the petitioners but to the country as a whole.”

The case in Scotland was brought by 75 anti-Brexit members of Parliament, including members of the Scottish National Party and Liberal Democrat leader Jo Swinson. Both the SNP and the Liberal Democrats are vehemently opposed to the U.K.’s departure from the EU. A majority of Scots voted against leaving the EU in the 2016 Brexit referendum.

They argue in a petition that Johnson’s decision to suspend Parliament, which was granted Wednesday by Queen Elizabeth II, was unlawful because it restricts Parliament’s ability to hold Johnson’s government to account and “frustrates the will of Parliament.”

Jo Maugham, a lead lawyer for the plaintiffs, said Friday’s ruling was not a setback and “just kicks the can a few days down the road.” Maugham and his crowdfunded Good Law Project have been involved in a number of legal fights over Brexit.

The plaintiffs’ lawyers also asked Doherty to allow them to require the prime minister to provide a sworn affidavit under oath to explain why he chose to suspend Parliament.

Outside court, Joanna Cherry, a SNP parliamentarian and lead plaintiffs’ lawyer, challenged Johnson to explain why he asked the queen to suspend Parliament, which is also known as prorogation.

“[If] he believes that he has a good case for prorogation, he should have the guts to swear an affidavit,” Cherry told The Guardian newspaper.

A spokesperson for Johnson denied that suspending Parliament prevents parliamentarians “from scrutinizing our withdrawal from the EU.” Johnson has argued that the five-week suspension will give Parliament “ample time” to debate Brexit before Oct. 31, the date the prime minister has promised to exit the EU with or without a deal.

In court on Thursday, the government’s lawyer, Roddy Dunlop, argued that a decision to suspend Parliament was an act performed by the queen and not a matter for the courts to consider, the BBC reported.

Under Britain’s constitutional monarchy, the monarch formally opens and closes sessions of Parliament upon the request of a prime minister. But the monarchy’s role is largely symbolic and the queen was not expected to challenge Johnson’s request on Wednesday to suspend Parliament.

Dunlop also argued that Parliament has never had a say in when a session is suspended. According to the BBC, he argued that the parliamentarians were asking the courts to “tread where they are ill qualified to venture” due to the “intensely political” nature of the issue.

Labour Party member Ian Murray said it was proper to challenge Johnson in the courts. Labour is the main opposition party.

“It is disappointing that we have to go to the courts to protect British democracy, but Boris Johnson’s attempt to silence the people’s representatives cannot go unchallenged,” he told The Guardian.

Britain’s Foreign Secretary Dominic Raab rejected that argument. He argued that only a few days of parliamentary time will be lost due to the suspension.

“The idea that this is some kind of constitutional outrage is nonsense,” he said.

Parliament was expected to shutter for a while in September and October to allow parties to hold conferences, but the suspension shuts down parliament longer than many want and effectively restricts Johnson’s opponents, who are seeking to block him from leaving the EU without a deal.

Earlier this year, Parliament voted not to leave without a deal, which economists say could be disastrous. Johnson, though, is eager to push the U.K. out of the EU, largely because many Tories see that as the only route available to exit the EU. Johnson argues that he must carry out the will of the voters, 52% of whom voted for Brexit in the 2016 referendum.

Courts in London and Belfast are also expected to take up legal challenges next week.

In the London case, a hearing is scheduled for next Thursday in a legal challenge brought by Gina Miller, a businesswoman and campaigner. Miller is using crowdfunding to pay for the challenge.

In an editorial, Miller called Johnson a “ruthless prime minister” who was “subjecting our unwritten constitution to stresses that would have been unimaginable a few years ago.”

All these legal challenges test Britain’s political system and the conventions that govern the relationship between the monarchy and Parliament.

Britain does not have a written constitution, and its system of government depends on conventions and precedents that are binding only in the sense that disregarding them would be politically costly. For instance, the Brexit referendum was not legally binding, but the Tory government feels bound to carry out the result. Opponents to Brexit argue that voters should be given the chance to vote on whether they want to leave the EU in a second referendum.

Jonathan Sumption, a former head of the U.K.’s Supreme Court, told the BBC this week that Johnson’s move to suspend Parliament was lawful even though it was “being done for a mistaken political motive.” According to Sumption, the courts need to look at whether it was lawful and not at whether Johnson did so out of political motivation.

Miller, the campaigner leading the London challenge, disagreed with Sumption and argued that “prorogation is not to be used in the manner Johnson has announced.”

“The effect of a prorogation of this length will be to prevent parliament from fulfilling its statutory duty to scrutinize any agreement between the U.K. and the EU,” she said.

“Sumption has failed to take account of the evolutionary nature of the U.K. constitution, and that in these unprecedented constitutional times, the legal arguments involved can also be expected to be unprecedented,” she added.

Miller’s legal challenge gained the support of Major, a former Tory prime minister, on Friday. Major said Johnson’s decision to suspend Parliament merits court challenges. He said he hoped “to assist the Court from the perspective of having served in government as a minister and prime minister.”

Miller’s case will be taken up by the Divisional Court at the Royal Courts of Justice and Ian Burnett, the chief justice, will preside.

In Belfast, another legal challenge is being led by Raymond McCord, a campaigner for victims of the Troubles, Northern Ireland’s decades-long bloody conflict between Catholics and Protestants.

McCord’s case in Northern Ireland’s High Court argues that Johnson’s move to suspend Parliament was unconstitutional and undemocratic. Prior to Wednesday’s move to suspend Parliament, McCord was challenging the legality of leaving the EU without a deal. He argues that doing so would violate the 1998 Belfast-Good Friday Agreement that ended the Troubles.

McCord charges that leaving without a deal will lead to the return of border checks between Ireland and Northern Ireland, which in turn will threaten Northern Ireland’s peace.

On Friday, Declan Morgan, Northern Ireland’s chief justice, said a hearing would be held no later than next Friday.

(Courthouse News reporter Cain Burdeau is based in the European Union.)